Regulatory: The Emerging Republican Regulatory Strategy

Congressional Republicans are planning a strategy to role back Obama Administration regulations by denying the implementing agency appropriations to implement the rule. The departing Democratic Congress illuminated this pathway by taking similar steps to force the President to cave on his policy for trying Guantanamo detainees.

Shortly before it adjourned, Congress adopted the National Defense Authorization Act for 2011, which authorized a year's spending by the armed forces. One provision of that massive law, adopted over strong Administration objections, barred the use of appropriated funds for the purpose of transferring Guantanamo detainees into the United States. It thereby eliminated the President's policy discretion to determine when and where foreign prisoners should be prosecuted.

Adoption of this provision sparked an intense debate within the White House about whether the President should veto the bill on the grounds that it unconstitutionally interfered with his authority as Commander-in-Chief. The Administration ultimately decided that the incursion on the President's authority was outweighed by the adverse effects that would result from a veto, including negative consequences for the country's military capacity, political embarrassment and the likelihood that any authorization measure passed by the new Congress would be worse. On January 7, 2011, the President reluctantly signed the bill while issuing a signing statement which objected that the law improperly interfered with the authority of the executive branch to make important national security and foreign policy determinations during a shooting war.

This experience provides a roadmap that Congressional Republicans will seek to emulate in their efforts to oppose Administration policies. The House leadership is considered a series of steps to attempt to deny executive agencies the funding necessary to implement the President's programs, especially in the health care and greenhouse gas fields. They will seek to attach to comprehensive spending bills individual riders that deny the executive branch the money necessary to adopt necessary implementing rules. The Guantanamo incident suggests that if they can obtain Senate agreement to defund a limited number of unpopular programs, the House may be able to frustrate the White House to some degree.

In carrying out this strategy, the key requirement will be tactical modesty, a self-discipline that is difficult to maintain in a heated policy battle. House leadership will have to calculate with precision how much embarrassment the Administration can bear before it will decide to accept the negative consequences of a veto, thereby depriving parts of the government of funding and forcing the affected agencies to shut down. The trick will be to avoid adding the straw that breaks the camel's back and triggers an inter-branch showdown. Ever since Congress first began utilizing this strategy in 1982, the President has enjoyed the support of the public each time he has been forced to veto major appropriations measures and shutdown the government because Congress loaded up the funding bills with objectionable provisions.

The emerging Republican strategy presents significant risks and has the potential for catastrophic consequences if coupled with a threat to refuse to raise the debt ceiling if the President vetoes the spending measure.

John F. Cooney is a partner in the Washington, D.C., office of Venable.